PATRICIA RIVET MURRAY, Judge.
In this criminal appeal, the defendant, Lydell Marshall, appeals his conviction and sentence for attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1 and 14:27. For the reasons that follow, we affirm his conviction, but remand for the imposition of the statutorily required mandatory fine.
On May 29, 2008, the State charged Mr. Marshall with one count of being a convicted felon in possession of a firearm.
On January 14, 2010, the State amended the bill of information to charge Mr. Marshall with attempted possession of a firearm by a convicted felon. Reserving his right to appeal the denial of his motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), Mr. Marshall withdrew his prior not guilty plea and pled guilty to the reduced charge. On February 19, 2010, the trial court sentenced Mr. Marshall to seven years at hard labor and granted his motion for appeal. This timely appeal followed.
Because Mr. Marshall pled guilty, the summary of facts is taken from the motion hearing transcript.
On cross-examination, Detective Jones testified that Mr. Marshall was a few feet into the driveway from the sidewalk when he detained him. Detective Jones further testified that he detained Mr. Marshall at the scene and frisked him for officers' safety purposes. He admitted that he had received no information concerning Mr. Marshall from the officers who conducted the surveillance and that Mr. Marshall did not attempt to flee when the officers arrived. He stated that there were more than four people standing out in the driveway area. He further stated that the people besides Mr. Marshall who were detained were subsequently released after the officers completed the investigation and found those people were not in violation of any law.
A review of the record reveals two patent errors with respect to Mr. Marshall's sentence. First, the trial court failed to specify that the sentence be served without benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:95.1 and 14:27D(3). The sentence without prohibition of benefits is illegally lenient. Nonetheless, pursuant to La. R.S. 15:301.1A, a sentence is deemed to have been imposed with these required restrictions of benefits, regardless of whether or not they are imposed by the sentencing court. See State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790. Stated otherwise, "[t]he correction is statutorily effected." State v. Phillips, 03-0304, p. 3 (La. App. 4 Cir. 7/23/03), 853 So.2d 675, 677. Thus, it is not necessary for this court to correct, or to remand for correction of, this patent error.
The other patent error in the sentence is that the trial court failed to impose the mandatory fine. La. R.S. 14:95.1B provides that a person convicted of the offense of being a convicted felon in possession of a firearm shall be fined not less than one thousand nor more than five thousand dollars. Pursuant to La. R.S. 14:27D(3), a sentence for an attempt must include a fine not to "exceed one-half of the largest fine . . . prescribed for the offense so attempted." When the sentencing court fails to impose a mandatory fine, the reviewing court is required to remand for the imposition of the fine. State v. Williams, 03-0302 (La. App. 4 Cir. 10/6/03), 859 So.2d 751; State v. Jefferson, 04-1960 (La. App. 4 Cir. 12/21/05), 922 So.2d 577; State v. Brown, 03-2155 (La. App. 4 Cir. 4/14/04), 895 So.2d 542. Such is the case here. Thus, this case must be remanded to the trial court for the imposition of the mandatory fine.
There are no other patent errors.
By his sole assignment of error, Mr. Marshall contends that the trial court erred by denying his motion to suppress the evidence. His argument is two-fold. First, he contends that the officers did not have a reasonable suspicion of criminal activity on his part to justify his detention. Second, he contends that the officers did not have a basis to justify the frisk that revealed the gun he had hidden in his waistband. Mr. Marshall raised these same issues in his pretrial writ. Finding that he had an adequate remedy on appeal, this court denied his writ. He then pled guilty, but reserved his right to appeal the trial court's denial of his motion to suppress the evidence pursuant to Crosby, supra.
When the legality of a search or seizure is placed at issue by a motion to suppress evidence, the state bears the burden of proving the admissibility of the evidence seized without a warrant. La. C.Cr.P. art. 703(D). A trial court's decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. State v. Wells, 08-2262, pp. 2-3 (La. 7/6/10), 45 So.3d 577, 580-81; State v. Scull, 93-2360, p. 9 (La. App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245 (holding that a "trial court is vested with great discretion when ruling on motion to suppress"); see also State v. Long, 03-2592 (La. 9/9/04), 884 So.2d 1176; State v. Fournette, 08-0254 (La. App. 4 Cir. 7/2/08), 989 So.2d 199.
In denying the motion to suppress the evidence, the trial court noted that after observing a hand-to-hand transaction at the targeted residence, the officers detained all the people in the immediate area of the narcotics transaction. The trial court further noted that the narcotics activity gave the officers reasonable suspicion to stop all the people at the residence, and the officers were justified in frisking the suspects for officers' safety. During the frisk, an officer found the gun in Mr. Marshall's waistband. The trial court specifically noted that it found the officer's testimony credible. On appeal, Mr. Marshall challenges the validity of both the detention and frisk.
As he did in his pretrial writ, Mr. Marshall first contends that the discovery of the gun was unlawful because the officers lacked reasonable suspicion to detain him. In support, he cites Detective Jones' admission that he neither saw Mr. Marshall engage in any criminal activity, nor received any information from other officers that they saw him committing any crime. He also cites Detective Jones' admission that it was standard procedure when conducting narcotics investigations to stop people in the vicinity of the illegal activity and to frisk them for officers' safety.
An officer may stop a person and question him if the officer has reasonable suspicion that the person has committed or is about to commit an offense. La. C.Cr.P. art. 215.1; State v. Temple, 02-1895 (La. 9/9/03), 854 So.2d 856; see also Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion is less than the probable cause needed to arrest a defendant; nonetheless, an officer "must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981); Temple, 02-1895 at p. 4, 854 So.2d at 859-60. In discussing the standard to be used by a reviewing court to determine if an officer had reasonable suspicion to detain a suspect, the Louisiana Supreme Court in Temple stated:
Temple, 02-1895 at p. 5, 854 So.2d at 860. In the instant case, Detective Jones admitted that the sole reason he detained Mr. Marshall was because Mr. Marshall was standing on the driveway close to where the other officers saw the codefendants engage in a hand-to-hand transaction. Detective Jones also admitted that he did not see Mr. Marshall engage in any criminal activity.
In its judgment denying Mr. Marshall's motion to suppress the evidence, the trial court acknowledged that a person's mere presence in an area known for criminal activity does not give the police reasonable suspicion to detain that person. The trial court, however, noted that the character of the area is a contextual factor that may be taken into consideration when a reviewing court determines whether a detention is valid. The trial court reasoned that "the evidence clearly indicated that the stop occurred in a high crime area and that the officers were concerned about their safety in moving in to make the narcotics arrest." Given the circumstances of the stop, the trial court found the officer's detention of Mr. Marshall was valid.
The trial court's ruling is supported by State v. Palmer, 09-0044 (La. 7/1/09), 14 So.3d 304. In Palmer, the Louisiana Supreme Court found officers were justified in detaining and handcuffing a defendant and several others who were on the premises of a residence that had been the subject of an investigation due to complaints of ongoing drug activity. The Supreme Court found that the detention was lawful even though there was no indication that the officers observed either the defendant or the others who were detained engaged in criminal activity. The officers had received tips concerning drug activity and had conducted a controlled buy from the residence, but apparently no action was taken after the controlled buy. After receiving another tip, officers drove to the residence. When the officers arrived at the residence "various individuals responded by scattering from the premises." Palmer, 09-0044 at p. 6, 14 So.3d at 308. The officers detained everyone on the premises, including the defendant who was found on the rear porch. The officers frisked and handcuffed the defendant. The officers then obtained the defendant's consent to search his car, which was parked nearby. Inside the car, the officers found drugs.
Analogizing the detention to that contemplated by Muehler v. Mena, 544 U.S. 93 (2005), in which officers were found to be justified in detaining everyone who was present when a search warrant was executed, and State v. Porche, 06-0312 (La. 11/29/06), 943 So.2d 335, discussed below, the trial court in Palmer refused to suppress the evidence. The appellate court disagreed and reversed, State v. Palmer, 08-0621 (La. App. 3 Cir. 12/10/08), 1 So.3d 689, but the Louisiana Supreme Court granted writs and reinstated the trial court's ruling. In so doing, the Supreme Court reasoned that "the court of appeal erred by substantially understating the circumstances confronting the Task Force members as they approached the residence and thereby failing to accord due deference to the trial court's factual findings." Palmer, 09-0044 at p. 5, 14 So.3d at 307.
The Supreme Court in Palmer noted that the tip (although from an anonymous citizen) recounted heavy vehicular traffic involving stops of short duration over a short period of time that was suggestive of drug activity, and this information was consistent with the officers' own knowledge of activity in the residence. Noting the high-risk nature of the investigation, the Supreme Court held that the officers were justified in detaining and handcuffing the thirteen to fourteen people found both inside and outside the residence while they searched the residence with the owner's consent, even though it appeared that the number of officers matched those of the people detained. The Supreme Court further held that the tip coupled with the officers' knowledge gave them, under the totality of the circumstances, "an objective and apparently reliable basis for suspecting renewed or ongoing drug trafficking at the residence, i.e., the requisite minimum level of objective justification for the investigatory detention of all of the individuals on the scene to take unquestioned command of the situation and to maintain the status quo temporarily while the investigation continued." Palmer, 09-0044 at pp. 6-7, 14 So.3d at 308.
In Porche, supra. (one of the cases relied upon by the trial court in the Palmer case), the Louisiana Supreme Court upheld the detention and handcuffing of a defendant who came to an apartment where the officers had found drugs while investigating a burglary. The officers knew that the resident of the apartment had called the defendant. When the defendant arrived at the apartment and saw the officers there, he became startled. The officers asked him his business at the apartment, and the defendant replied that he was at the wrong apartment. Because the officers knew that the resident had called the defendant, they asked him about the call. The defendant acknowledged the call, but he again insisted that he was at the wrong apartment. He appeared visibly shaken. The officers then asked him for some identification. He replied that his identification was in his apartment, which was located in the same complex. The officers handcuffed him, and he agreed to walk with the officers to his apartment. Once there, he gave them his keys. When the officers opened the door to his apartment, they smelled a strong acidic chemical odor associated with cocaine. They also saw stacks of money on two tables. When the defendant did not reply to questions about the money and the odor, they placed him under arrest and advised him of his rights. Once inside the apartment, the defendant admitted there were drugs in a bag in the kitchen, but he refused to consent to a search of the bag. The officers obtained a search warrant and seized various items. The trial court suppressed the evidence, finding that the officers had no reasonable suspicion to detain the defendant. The appellate court denied writs.
The Louisiana Supreme Court reversed reasoning:
Porche, 06-0312 at p. 5, 943 So.2d at 338.
The Supreme Court in Porche further reasoned that the officers were lawfully in the first apartment and knew that the defendant's appearance there was not a coincidence. The officers merely questioned the defendant about his purpose for being at the apartment, and they did not detain him until he began trying to distance himself from the apartment. The Supreme Court still further reasoned that "[g]iven the rapidly changing nature of the police investigation and the uncertainty over where it was leading, . . . [the defendant's] shocked demeanor and hesitancy in acknowledging that he was where he thought he should be, Lieutenant Hoefeld had the requisite minimal objective basis to detain an individual `in order to determine his identity or to maintain the status quo momentarily while obtaining more information,' the hallmark of an investigatory stop." Porche, 06-0312 at p. 6, 943 So.2d at 338-39 (quoting State v. Fauria, 393 So.2d 688, 690 (La. 1981)).
As in Palmer and Porche, the Louisiana Supreme Court in State v. Boyer, 07-0476 (La. 10/16/07), 967 So.2d 458, upheld the detention and handcuffing of a defendant who was standing outside a trailer, talking on a cell phone, when officers arrived to execute a search warrant for the trailer. When the defendant saw the officers, he quickly put his other hand in his pocket. The officers repeatedly ordered him to remove his hand from his pocket and to get on the ground. The defendant failed to comply. An officer grabbed him, took his hand out of his pocket, handcuffed him, and put him on the ground. The officer frisked the defendant and felt a large, unknown object in the defendant's pocket. He removed the object—a cell phone—and then continued searching the defendant. Eventually he found two unknown small, round objects. He removed these objects—charcoal filters for smoking crack cocaine. The trial court granted his motion to suppress the evidence, and the appellate court reversed. The Louisiana Supreme Court granted writs and reinstated the trial court's finding as to the detention.
With respect to the detention of the defendant, the Supreme Court in Boyer found that the trial court erred by finding under the totality of the circumstances there was no reasonable suspicion to detain the defendant. The Supreme Court reasoned that "[t]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence." Boyer, 07-0476 at p.18, 967 So.2d at 470 (citing Michigan v. Summers, 452 U.S. 692 (1981)). The Supreme Court further reasoned that although the defendant was standing about twenty feet from the trailer and the officer did not know if he was still on the property to be searched, he was close enough to be detained. The Court still further reasoned that "the need to ensure the safety of the officers and citizens while the SWAT team was swarming the property, the need to exercise unquestioned command of the situation and the need to ascertain the identity of anyone present and temporarily maintain the status quo all made it reasonable to detain Boyer." Boyer, 07-0476 at p. 19, 967 So.2d at 470.
Although in the instant case the details are virtually unknown from Detective Jones' testimony, the officers set up a surveillance of the targeted residence, which was suspected of harboring narcotics activity. They observed a hand-to-hand transaction by the two codefendants outside of the residence, and Mr. Marshall was detained along with the codefendants outside of the residence shortly thereafter. As in Palmer, the officers had at the very least reasonable suspicion to detain the codefendants, who were standing on the driveway of the targeted residence. As in Palmer, Porche, and Boyer, the officers also could detain Mr. Marshall, who likewise was standing nearby on the driveway. The factors that led to the establishment of the surveillance—that are virtually unknown from Detective Jones' testimony at the hearing, but included suspected narcotics activity—coupled with the hand-to-hand transaction, gave the officers reasonable suspicion to believe that there was ongoing narcotics activity at the targeted residence. The fact that Mr. Marshall did not attempt to flee when the officers approached him does not render the trial court's ruling suspect. The defendant in Boyer did not attempt to flee when the officers executing the search warrant approached him. Nor does the fact that there were only four suspects in the area of the driveway, as opposed to the thirteen-to-fourteen suspects in Palmer, render the trial court's ruling suspect. In the Mena case—the case upon which Palmer and Porche were based—there were only four people present when the officers executed the search warrant, yet the United States Supreme Court found that the officers validly detained them. Accordingly, the trial court did not err by finding that the officers validly detained Mr. Marshall.
As noted, Mr. Marshall's second contention is that the officers lacked a valid basis to frisk him. Detective Jones testified that once he had detained Mr. Marshall, he frisked him for officers' safety and found the gun in his waistband. In addressing the issue of the justification for a frisk, this court in State v. Jones, 99-0861, p. 12 (La. App. 4 Cir. 6/21/00), 769 So.2d 28, 38 stated:
Id. The existence of reasonable suspicion of criminal activity, alone, does not give an officer the right to frisk a suspect; there must be some basis for a fear of safety or a fear the suspect is armed. Jones, supra; see also State v. Lazard, 08-0677 (La. App. 4 Cir. 12/10/08), 2 So.3d 492; State v. Smiley, 99-0065 (La. App. 4 Cir. 3/3/99), 729 So.2d 743; State v. Denis, 96-0956 (La. App. 4 Cir. 3/19/97), 691 So.2d 1295.
This court has recognized the connection between weapons and drug activities:
Lazard, 08-0677 at p. 6, 2 So.3d at 496 (quoting Jones, 99-0861 at p. 14, 769 So.2d at 38-39); see also State v. Craft, 03-1852 (La. App. 4 Cir. 3/10/04), 870 So.2d 359; State v. Bradley, 03-1518 (La. App. 4 Cir. 1/28/04), 867 So.2d 31.
In this case, Mr. Marshall was detained outside the residence suspected of harboring narcotics activity after officers conducting surveillance saw the codefendants engage in a hand-to-hand transaction. Given the evolving nature events that led to the establishment of the surveillance and the arrest of the two codefendants actually involved in the narcotics activity, the trial court did not err by finding Detective Jones was justified in frisking Mr. Marshall for officers' safety. Jones, supra. When Detective Jones frisked Mr. Marshall, he felt the butt of the gun tucked into Mr. Marshall's waistband. At that point, Detective Jones had probable cause to arrest Mr. Marshall for carrying a concealed weapon, and incidental to this arrest he could seize the gun. See State v. Parker, 06-0053 (La. 6/16/06), 931 So.2d 353; State v. Mathieu, 07-1579 (La. App. 4 Cir. 6/25/08), 988 So.2d 803; State v. Dowell, 03-1143 (La. App. 4 Cir. 9/24/03), 857 So.2d 1098.
Lastly, Mr. Marshall emphasizes Detective Jones' testimony that it was his policy to detain and frisk everyone who is stopped in the vicinity of a narcotics investigation. However, even assuming it was Detective Jones' (or his department's) policy, this policy did not automatically render Mr. Marshall's detention and frisk unlawful. See Whren v. United States, 517 U.S. 806 (1996)(holding that a pretextual stop can still be valid if there is an independent basis for the stop.) As discussed above, there was a valid basis for both the detention and the frisk of Mr. Marshall that led to the discovery of the gun in his waistband.
Given the circumstances of this case, the trial court did not abuse its discretion by denying the motion to suppress the evidence seized from Mr. Marshall. This assignment of error lacks merit.
For the foregoing reasons, the defendant's conviction is affirmed, and this case is remanded for the imposition of the mandatory fine. On remand, the trial court is further instructed to amend the seven year sentence it imposed to provide that the sentence is to be served without benefit of parole, probation, or suspension of sentence.
